Month: March 2018

This month’s green belt news: two Court of Appeal rulings, a Secretary of State decision letter and of course the draft revised NPPF.Brown v London Borough of Ealing (Court of Appeal, 23 March 2018) was a judicial review of a local authority’s grant of planning permission for a first team training and academy facility for Queen’s Park Rangers, sports pitches, community facilities and associated development at Warren Farm Ealing, on metropolitan open land (where of course green belt policy tests apply).

One of the two grounds of challenge was “whether the officer’s conclusion, accepted by the committee, that “very special circumstances” existed to justify the grant of planning permission for “inappropriate development” on Metropolitan Open Land was bad in law“.
Paragraph 88 of the current NPPF states:
“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless any potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”
Following Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government (Court of Appeal, 24 October 2014), it is well established that the expression “any other harm” does not just mean any other harm to the green belt but takes in non- green belt factors as well. The question for the court in Brown was whether the officer had taken this correctly on board. It was submitted by the claimant that the structure of the officer’s conclusions suggested that she had either excluded non green belt harm such as loss of public access or that she had double-counted by concluding that the proposed improvements to community facilities would balance out that harm, when she had already taken into account the same factor as part of the “very special circumstances” arising. The court disagreed. The report had to be interpreted “with reasonable benevolence and realism, and not in an overly legalistic way“. The officer had properly applied the approach that the Redhill judgment requires and on the double-counting point:

“In principle, it is possible for a particular factor to be relevant, and to carry appropriate weight, in the consideration of more than one planning issue. It may serve to avoid or overcome or, at least, outweigh some real or potential planning harm, and it may also satisfy some planning need that would otherwise go unmet”

“This was not, in any sense, “double-counting”. Rather, the officer’s conclusions point up the two-fold relevance of the improvement to recreational facilities at Warren Farm as a material consideration – to which appropriate weight had to be given in two respects, not merely in one. The officer was entitled to conclude, as a matter of planning judgment, that in the context of “Public Access”, given the availability of other publicly accessible open space nearby, the balance of relevant benefit – improved sports facilities for the local community – against disadvantage – the “loss” of public access for recreation – fell in favour of the development. I do not accept that this benefit was immaterial in that particular context; it was, I think, plainly a relevant consideration there. The officer was also entitled to conclude, again as a matter of planning judgment, that in the “very special circumstances” balance itself, the ability of the development to meet a need identified in development plan policy – the general need for investment in improved sports facilities, and specifically the need for such investment at Warren Farm – was a consideration to which weight should be given on the positive side of that balance. These conclusions were not in tension or conflict with each other. They were distinct from each other, but mutually consistent. They do not show a material consideration being given double weight, only a single factor being given due weight in two different respects: first, outweighing a “loss” that would be caused by the development itself; second, meeting an existing need that would not be satisfied without the development.”Samuel Smith Old Brewery (Tadcaster) Limited v North Yorkshire CC (Court of Appeal, 16 March 2018) was the latest piece of litigation instigated by Yorkshire brewer and serial litigator Humphrey Smith. This time the target of Mr Smith’s attention was a planning permission granted for the extension of a limestone quarry in the green belt about a mile from Tadcaster. The claimant argued that the council had misapplied paragraph 90 of the NPPF, which states mineral extraction is not “inappropriate development” in the green belt if it preserves the openness of the green belt.
The officer had approached the question of “openness” in this way:“It is considered that the proposed development preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt. Openness is not defined, but it is commonly taken to be the absence of built development. Although the proposed development would be on existing agricultural land, it is considered that because the application site immediately abuts the existing operational quarry, it would not introduce development into this area of a scale considered to conflict with the aims of preserving the openness of the Green Belt. In terms of whether the proposed development does not conflict with the purposes of including land within the Green Belt, the proposed quarrying operations are not considered to conflict with the purposes of including land within the Green Belt. Equally, it is not considered that the proposed development would undermine the objective of safeguarding the countryside from encroachment as it should be considered that the site is in conjunction with an operational quarry which will be restored. The proposed development is a temporary use of land and would also be restored upon completion of the mining operations through an agreed DRMP. The purposes of including land within the Green Belt to prevent the merging of neighbouring towns and impacts upon historic towns are not relevant to this site as it is considered the site is adequately detached from the settlements of Stutton, Towton and Tadcaster. It is also important to note that the A64 road to the north severs the application site from Tadcaster.”
The court found that this was indeed a misinterpretation of paragraph 90:“The concept of “the openness of the Green Belt” is not defined in paragraph 90. Nor is it defined elsewhere in the NPPF. But I agree with Sales L.J.’s observations in Turner to the effect that the concept of “openness” as it is used in both paragraph 89 and paragraph 90 must take its meaning from the specific context in which it falls to be applied under the policies in those two paragraphs. Different factors are capable of being relevant to the concept when it is applied to the particular facts of a case. Visual impact, as well as spatial impact, is, as Sales L.J. said, “implicitly part” of it. In a particular case there may or may not be other harmful visual effects apart from harm in visual terms to the openness of the Green Belt. And the absence of other harmful visual effects does not equate to an absence of visual harm to the openness of the Green Belt.

As a general proposition, however, it seems to me that the policy in paragraph 90 makes it necessary to consider whether the effect of a particular development on the openness of the Green Belt can properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question – the very fact of its being there – without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer. To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the Green Belt would be artificial and unrealistic. The policy in paragraph 90 does not do that. A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.

The first part of the question posed by the preamble in paragraph 90 – whether the development would “preserve” the openness of the Green Belt – cannot mean that a proposal can only be regarded as “not inappropriate in Green Belt” if the openness of the Green Belt would be left entirely unchanged. It can only sensibly mean that the effects on openness must not be harmful – understanding the verb “preserve” in the sense of “keep … safe from harm” – rather than “maintain (a state of things)” (Shorter Oxford English Dictionary, 4th edn.). There may be cases in which a proposed development in the Green Belt will have no harmful visual effects on the openness of the Green Belt. Indeed, there may be cases in which development will have no, or no additional, effect on the openness of the Green Belt, either visual or spatial. A good example might be development of the kind envisaged in the fourth category of development referred to in paragraph 90 of the NPPF – “the re-use of buildings provided that the buildings are of permanent and substantial construction”. But development for “mineral extraction” in the Green Belt, the category of development with which we are concerned, will often have long-lasting visual effects on the openness of the Green Belt, which may be partly or wholly repaired in the restoration phase – or may not. Whether the visual effects of a particular project of mineral working would be such as to harm the openness of the Green Belt is, classically, a matter of planning judgment.

In my view, therefore, when the development under consideration is within one of the five categories in paragraph 90 and is likely to have visual effects within the Green Belt, the policy implicitly requires the decision-maker to consider how those visual effects bear on the question of whether the development would “preserve the openness of the Green Belt”. Where that planning judgment is not exercised by the decision-maker, effect will not be given to the policy. This will amount to a misunderstanding of the policy, and thus its misapplication, which is a failure to have regard to a material consideration, and an error of law.”
Or as Zack Simons summarised:
The planning permission was quashed.
Aside from these two Court of Appeal rulings, throwing light on paragraphs on paragraphs 88 and 90 of the NPPF respectively, it was also interesting to see this month the Secretary of State allow an appeal by Berkeley Homes (Southern) Limited and Howard Partnership Trust for substantial development in the green belt, comprising 258 homes and replacement secondary school in Effingham, Surrey. In his decision letter (21 March 2018) the Secretary of State’s findings included that:

– There is a need for additional school places in the area, “the existing school premises are not fit for the purpose of meeting modern educational and social need and that the replacement of the school in order to facilitate this carries very substantial weight“. Furthermore, “there are very significant issues with the fabric of the school and the ongoing funding of its repair and maintenance in the current budgetary context. He further agrees that in seeking to address condition as well as suitability and sufficiency, the least expensive option is the rebuilding of the school on the only other available identified site, and that these matters carry very substantial weight.”
– An Autism Centre “optimally located within the new complex to maximise its effectiveness for the students who will use it, … is a clear benefit of the scheme and to deepening the educational and community inclusivity of the school.”

– Guildford Borough Council only has a 2.1 year housing land supply. Against this the Secretary of State considered that the delivery of dwellings, 20% of which will be affordable, carries very substantial weight.

He concluded that the benefits arising from the scheme “clearly outweigh harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist” for the purposes of paragraphs 87 and 88 of the NPPF.
The inclusion of reference to the extent of unmet housing need in Guildford as part of the very special circumstances relied upon is encouraging, but the need to replace the school and provide more school places was a crucial component, given that the Government has indicated since 2013 that unmet housing need alone is not sufficient to amount to very special circumstances, a stance that is presently unlikely to change. Indeed, at the end of a House of Commons debate debate on 6 February 2018 on housing, planning and the green belt, there was this exchange between Dominic Raab and a backbench Conservative MP:
This was of course followed by publication on 5 March of the draft revised NPPF (NPPF 2.0 for hipster-planners). Has it made any difference to any of what I have set out above? Well, slightly:
– paragraph 88 is now paragraph 143 and after the words “any other harm” is added “resulting from the proposal“. This is an additional pointer towards the Court of Appeal’s wider interpretation of that phrase as per Redhill and now Brown.
– paragraph 90 is now paragraph 145 with unchanged wording, although within paragraph 144 there is an important extra category of development that is not “inappropriate” and where “very special circumstances” therefore do not need to be shown”: “where the development would re-use previously developed land and contribute to meeting an identified local affordable housing need, not cause substantial harm to the openness of the Green Belt. ” – this “not cause substantial harm” is going to be the new battleground I’m sure. There is also a clarification of the previous statement that “the provision of appropriate facilities for outdoor sport, outdoor recreation” etc is not “inappropriate development”. The wording is now “the provision of appropriate facilities (in connection with the existing use of land or a change of use) for” those uses”, following the approach already adopted by the courts, eg in R (Timmins) v Gedling Borough Council (Court of Appeal, 22 January 2015).
The “exceptional circumstances” test for changing green belt boundaries in plans has been embellished (as flagged since the February 2017 housing white paper) by requiring that “the strategic plan-making authority should have examined fully all other reasonable options for meeting its identified need for development. This will be assessed through the examination of the plan, which will take into account the preceding paragraph, and whether the strategy;

* a) makes as much use as possible of suitable brownfield sites and underutilised land;

* b) optimises the density of development, including whether policies promote a significant uplift in minimum density standards in town and city centres, and other locations well served by public transport; and

* c) has been informed by discussions with neighbouring authorities about whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground.”

“Where it has been concluded that it is necessary to release Green Belt land for development, plans should give first consideration to land which has been previously-developed and/or is well-served by public transport. They should also set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.”

Will this embellishment raise the threshold materially for green belt release? I’m not sure that the additional criteria do anything more than articulate the matters that would be examined in any event. The removal of some brownfield proposals, which will not cause substantial harm to the openness of the green belt, from the definition of inappropriate development is on the other hand potentially significant (and surely wholly sensible). As for the constant flow of case law, it is certainly not going to dry up.
Simon Ricketts, 30 March 2018
Personal views, et cetera

Life can be tough. A public authority may have complied with the letter of the law but by its actions you feel that you have been treated unfairly.
Of course, complying with what the legislation strictly requires is not the limit of an authority’s legal responsibilities. The authority also must comply with wider principles of administrative law, which include:
– not making a decision which is irrational (very difficult to persuade a court that a decision is irrational)
– not having a closed mind (challenges of local planning authorities these days on that ground have been made more difficult by section 25 of the Localism Act 2011)

– a basic duty of procedural fairness, which includes a “duty of consultation…where there is a legitimate of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.” (Lord Reed in R (Moseley) v London Borough of Haringey (Supreme Court, 24 October 2014).

Given that estoppel (eg holding a planning officer to an assurance that they may have given you) really has very little place in the planning system since R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd (House of Lords, 28 February 2002), there have inevitably been many attempts to persuade the courts that there has been procedural unfairness – that there has been a breach of a legitimate expectation that you would be consulted before the authority takes a particular decision.
The purpose of this blog post is simply to make the obvious point that it isn’t that easy. The courts draw the concept very tightly.
The most comprehensive recent summary of the principles of procedural and substantive legitimate expectation in our little planning law world is set out by Dove J in Richborough and others v Secretary of State (12 January 2018), the written ministerial statement case, where various house builders and land promoters sought to argue that on the basis of the Government’s “regular past practice, there was a legitimate expectation that the defendant would consult the house building industry in relation to:

a. any change to National Planning Policy for housing, or alternatively,

b. any major change for National Policy for housing or, alternatively,

c. any major change to the policy pertaining to five year housing supply in national policy.”

Dove J reviewed the case law and identified from a Court of Appeal ruling, Bhatt Murphy v Independent Assessor (2008), that for procedural legitimate expectation (the right to be consulted before a decision or policy change) there has to be “an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation...”. For substantive legitimate expectation (the right to compel the authority to continue a policy rather than change or abolish it) there is the additional requirement that the court will have to “decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power“.
“Unequivocal” is a high threshold. In Richborough, Dove J found that “the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation. It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing. Thus I am unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS.”
This month, procedural legitimate expectation was sought to be relied upon as a ground of challenge in Kebbell Developments Limited v Leeds City Council (Court of Appeal, 14 March 2018). Here, the challenge was to Leeds City Council’s modifications made, without consultation, to a neighbourhood plan following receipt of the inspector’s report and before putting it to a referendum. The unfortunate owners of a development site potentially prejudiced by the additional wording introduced sought to argue without success that there was a legislative requirement for consultation with an additional argument that not to consult would in any event be procedurally unfair. The Court of Appeal rejected all grounds. Lindblom LJ gave the main judgment but Singh LJ (elevated to the Court of Appeal last year and with a formidable public law background) gave an additional judgment, which includes a useful analysis of the duty to consult, dividing it into two types:
– “procedural fairness in the treatment of persons whose legally protected interests may be adversely affected” (which is what we have been looking at so far in this blog post). He doesn’t see this strictly as a duty of consultation:
“Procedural fairness in the former context is really the modern term for what used to be called “natural justice”, in particular the limb of it which used to be called audi alteram partem (“hear the other side”). Public law no longer talks of “judicial” or “quasi-judicial” disputes and so even the notion of a “hearing” seems inapt now but the fundamental requirement of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken. To refer to “consultation” in that context is not wrong as a matter of language but I think it would be better to avoid using it in that context, so as to avoid confusion with the sense in which it is used in the context of public participation in a public authority’s processes for making policy or perhaps some form of legislation such as rules.”
– “public participation in a public authority’s decision-making process“, where the source of the authority’s obligation will very often be legislation. (Although not always, it seems to me, eg cases in relation to authorities’ statement of community involvement – authorities fail to comply with their SCI at their peril).
It seems to me that this constrains the ambit of the breach of legitimate expectation principle even further.
The Court of Appeal may conceivably return to the question of legitimate expectation before long, given that according to Landmark Chambers the court has given permission for an appeal in R (Save Britain’s Heritage) v Secretary of State (Lang J, 29 November, 2017). This was the challenge to the Secretary of State’s decision not to call in the Paddington Cube application for his own determination. As set out in the judgment, Save argued that the “decision was unlawful because he failed to give reasons for not calling in the applications, in breach of the Claimant’s legitimate expectation that reasons would be given. The legitimate expectation arose from a change in practice, announced in a Green Paper and in Parliament in December 2001. Thereafter, ministers began to give reasons for not calling in planning applications, when previously they had not done so.”
Lang J had rejected the claim:“In this case, in 2001, a new practice of giving reasons for non-intervention was introduced by the then minister, and it was clearly and unequivocally announced in the Green Paper, and in Parliament. In my view, this could well have given rise to a legitimate expectation that reasons would be given for non-intervention, if it had remained in operation. A failure to give reasons in accordance with the established practice could have been a potential breach of the legitimate expectation, and thus unlawful unless justified.

However, by the date of the Claimant’s application to the Defendant in December 2016 and the Defendant’s decision in March 2017, there was no longer an established practice that reasons would be given for a decision not to call in an application. On the contrary, the established practice was that reasons would not be given. I consider that the earlier statements and practice relied upon by the Claimant had been superseded by 2016/2017 and so could no longer found an expectation that reasons would be given. If any such expectation was held, it had ceased to be a legitimate one, because of the change in practice.”

Despite permission to appeal having been given, I wonder whether Save will proceed. According to the Landmark summary it seems that the court has made clear that even if the challenge is successful it will not result in the quashing of the permission which Westminster City Council has now issued. What is sought is also a classic example of a substantive rather than procedural legitimate expectation – ie not that the claimant should have been consulted, but that the defendant should not have changed its policy, which engages the additional test I set out earlier.
Two earlier failed claims by way of example:
In R (Leicestershire Police and Crime Commissioner) v Blaby DC (Foskett J, 27 May 2014) a police force tried to argue that it had a legitimate expectation of further consultation in relation to planning obligations, from which it would benefit, before a section 106 agreement was completed.
The judge said this:“There is, of course, a good deal of authority on the issue of legitimate expectation. I am quite prepared to accept for present purposes that a course of dealing between two parties in the kind of context with which this case is concerned can in some circumstances give rise to a legitimate expectation that some particular process will be followed by the public authority the subject of the challenged decision before the decision is taken. The course of dealing can be on such a basis that the necessarily “clear and unambiguous” representation upon which such an expectation is based may arise.

Did anything of that nature arise in this case? I do not think so. What one can see from the communications to which I have referred is a pattern of negotiation, in effect between the Claimant and the developers with the Defendant as the intermediary, where no unequivocal representation was made by the Defendant that could have led to an expectation that it would be consulted “on the level of and timing of the delivery of the contribution”. That having been said, however, there can be little doubt that the Defendant was aware of the Claimant’s view on the timing of the premises contribution which, in one sense, was the most significant part of what was required by way of infrastructure funding. The equipment contribution was discussed and the police could have given “chapter and verse” on that if they had chosen to do so prior to the final discussions between the Defendant and the developers. However, I do not see any basis for a specific obligation on the Defendant’s part to inquire about that.”
A second failed example, this time as to substantive legitimate expectation, in R (on the application of Godfrey) v Southwark LBC (Court of Appeal, 24 April 2012):
“The claim is based on the council’s failure to give effect to an understanding in relation to the provision of a community centre as a part of the proposed development. It was submitted that the council has failed to take account of a material planning consideration, the project brief, and that the council has not implemented its own policy 7P. Further, there was a substantive legitimate expectation that better facilities would be provided than have been provided by the permission. Reliance is placed on documents issued by the council in 2002 and 2003 and discussions which took place at that time between council officers and local residents.”

Again, on the facts the claim was rejected.

All of this is not to say that a breach of legitimate expectation claim will never succeed. In R (Majed) v London Borough of Camden (2010), the Court of Appeal held that a local planning authority‘s statement of community involvement gave rise to a legitimate expectation that the consultation set out in it (which was additional to the statutory minimum) would be carried out. The Court held that legitimate expectation came into play when there was a promise or a practice to do more than that which was required by statute and that the statement of community involvement issued by the local authority was a “paradigm example” of such a promise and practice.

This was revisited in R (Gerber) v Wiltshire Council (Court of Appeal, 23 February 2016), although, as so often, the claim failed on the facts:“40. With respect to the judge, I accept the submission of the appellants that he erred in his ruling that on its proper interpretation the SCI contained an unambiguous promise to consult Mr Gerber directly about the application for planning permission, which the Council failed to honour. The judge arrived at this conclusion by running together para. 5.6 of the SCI with the summary of the position in Appendix 1 to the SCI, set out above. In my judgment, however, on a proper interpretation of the SCI the relevant policy is that set out in para. 5.6, and it cannot be said that it is possible to read that in conjunction with Appendix 1 in order to spell out a clear and unambiguous promise in accordance with the relevant standard in MFK Underwriting Agencies that any neighbour affected by an application for planning permission would be consulted directly by the Council.41. Paragraph 5.6 of the SCI is clearly set out within that document as the relevant policy for consultation of neighbours. It is expressly directed to consultation of the owners of properties adjoining sites for proposed development. Gifford Hall does not adjoin the Site in the present case, so Mr Gerber could not bring himself within the scope of para. 5.6.

42. In my view, it is not possible to say that the text in Appendix 1 leads to the conclusion that the SCI contains a clear and unambiguous promise that anything more extensive will be done by the Council by way of consultation: (i) para. 5.6 is drafted in precise terms which conflict with the wider interpretation which the judge sought to spell out of the SCI, so at best (from Mr Gerber’s point of view) there is an ambiguity in the SCI; but in any event, (ii) para. 5.6 is highlighted in the main text of the SCI and clearly identifies the content of the relevant policy in the SCI, so it must be regarded as setting out the definitive statement of what the Council promises to do; and (iii) Appendix 1 to the SCI, although poorly drafted, is not part of the main text of the document and does not purport to set out definitive policy promises or to qualify the main text of the SCI, but only sets out a summary of different options to make broad comparisons between them.

43. Although the proper interpretation of the SCI is an objective matter for the court and the way in which the parties may have read the SCI is in no way definitive, I think it is fair to point out that in the letter of 22 April 2014 Mr Gerber and his then solicitors identified para. 5.6 in the SCI, and not Appendix 1, as containing the relevant statement of policy by the Council. In my opinion, they were correct to do so.

44. There was, therefore, no breach of legitimate expectation by the Council. Mr Gerber says that other non-adjoining properties received individual notifications of the application for planning permission, but the Council has given an explanation why that happened which appears reasonable. The important point for present purposes, however, is that whether the Council’s explanation is accepted or not, this feature of the case does not support Mr Gerber’s legitimate expectation submission, founded as it is on what he maintains the Council promised in the SCI itself.”

When you feel wronged, as undoubtedly all of these claimants did, it can be tempting to expect your lawyer to raise sword of justice above head and invoke the spirit of Henry V, Act III, Scene 1, and not very Shakespearean to be talking of proceeding with caution, but what you definitely need is unequivocal assurance in more ways than one.

Feeling a little Proustian après MIPIM? Where did that time go?
Some minor changes have been made this month to PD rights, more significant changes are possibly still to come and some existing PD rights remain controversial.The minor changes
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018 was made on 8 March 2018 and comes into force on 6 April 2018. It makes various detailed amendments to the existing regime, the most significant ones being:

– Extending the existing temporary right to change use of a building from a storage or distribution centre to a dwellinghouse, which was shortly to expire. The prior approval date must be by 10 June 2019 and the change of use must be completed within three years of the prior approval date.
– Expansion of the permitted development right to change the use of agricultural buildings to dwellinghouses such that the maximum amount of floorspace that may be converted is increased from 450 sq m to 465 sq m and up to five dwellinghouses may be created from that floorspace rather than three.

– Enabling the Secretary of State to pause the 28 day period for prior approval where he is considering calling in an application for his own determination.

The more significant possible further changes
In my 15 June 2016 blog post Permitted Development: What Next? I speculated as to whether two further permitted development rights would be created, which the Government had previously contemplated, namely:

– Office demolition and residential rebuild
– Upward extensions in London
21 months later, the position is still uncertain in relation to both proposals. If they are introduced their scope could well be wider than initially envisaged, but will they? More lost time if they are introduced and prove to be successful in increasing housing supply.
We had heard nothing on office demolition and residential rebuild since Brandon Lewis’ October 2015 announcement, and it was assumed that the idea was dead, until the unexpected announcement in the Autumn 2017 budget policy paper that “the government will consult on introducing… a permitted development right to allow commercial buildings to be demolished and replaced with homes“.
Was the reference to “commercial buildings” intentionally wider in scope than just offices? What would be the prior approval requirements? Would there be a floorspace cap? I had hoped for an update alongside the draft revised NPPF announcements in February or alongside the Spring budget statement this month but still we wait.
Similarly, we had heard nothing about the proposed PD right for upward extensions in London since a joint Mayor of London/DCLG consultation paper in February 2016. The ministerial policy statement on 5 February 2018 appeared to make it clear that the initiative (now across England, not just London) would be dealt with by policy, within the NPPF. But then Sajid Javid’s speech launching the draft revised NPPF on 5 March 2018 had this passage:
“And there are also other areas in which we’re ready to go further to take the delivery of housing up a gear.

Including a new permitted development right for building upwards to provide new homes.”
I’m left scratching my head in relation to both proposals, frankly.

Office to residential and other existing PD rights
The office to residential permitted development right remains controversial. Undoubtedly it has delivered in terms of increasing housing stock, although with a free ride for developers in terms of affordable housing and other contributions and in some areas jeopardising the stock of office floorspace. Quality of the conversions has been variable. But, in a housing crisis, has the end justified the means?
The Local Government Association published some campaigning research One in 10 new homes was a former office against the right on 18 January 2018.

The current areas exempted from the right will lose that exemption from 31 May 2019 and many authorities are taking steps to remove it in any event by way of Article 4 Direction, for instance recently Westminster City Council (see its 26 January 2018 report to cabinet). Indeed, policy SD5 F of the draft London Plan supports that approach:
“The Mayor will work with boroughs and support them to introduce Article 4 Directions to remove office to residential permitted development rights across the whole of the CAZ and the Northern Isle of Dogs (and those parts of Tech City and Kensington & Chelsea lying outside the CAZ)”
It will be interesting to see how this tension with national policy is addressed at the examination into the draft plan.
In the meantime, inevitably given the complexity now of the PD rights regime and its advantages for developers in many situations over the traditional planning applications procedure, we have seen an increase in litigation as to the nuts and bolts of the prior approval procedure.

Most recently, in R (Marshall) v East Dorset District Council (Lang J, 13 February 2018), prior approval for the erection of an agricultural building was quashed on the basis that the PD right excluded buildings for the accommodation of livestock, whereas the application for prior approval had indicated that one of the proposed uses of the building was to “winter house 45 ewes and their lambs through the winter period“!
Last year’s decision in Keenan v Woking Borough Council (Court of Appeal, 16 June 2017) is also interesting, on a similar theme, making clear that where the authority fails to respond to an application for prior approval within 28 days, such that there is a deemed prior approval, if the proposed development did not fall within the criteria of the relevant part of the General Permitted Development Order it does not as a result of the deemed approval become “permitted development”.
Accordingly, whether or not you have prior approval, or deemed prior approval, your proposed development still needs to fit within all of the relevant restrictions and thresholds within the Order.
To end with M Proust:
“...loopholes opened by disappointment. Dreams are not to be converted into reality, that we know; we would not form any, perhaps, were it not for desire, and it is useful to us to form them in order to see them fail and to be instructed by their failure.”
Simon Ricketts, 17 March 2018
Personal views, et cetera

The draft revised NPPF itself says very little on developer contributions, CIL and viability.
On contributions, paragraph 34 of the draft (headed, in contrast to the “developer contributions” document, “development contributions” – consistency of terminology would be good!) states:
“Plans should set out the contributions expected in association with particular sites and types of development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, green and digital infrastructure). Such policies should not make development unviable, and should be supported by evidence to demonstrate this. Plans should also set out any circumstances in which further viability assessment may be required in determining individual applications.”

On viability:

“58. Where proposals for development accord with all the relevant policies in an up-to- date development plan, no viability assessment should be required to accompany the application. Where a viability assessment is needed, it should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”
The Developer Contributions consultation document (responses sought by 10 May) addresses both contributions by way of section 106 planning obligations and by way of CIL. The document is accompanied by a research report commissioned from the University of Liverpool, The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2016-17 which has some interesting statistics, underlining for me the scale of monies already being secured from development, over £6bn in 2016/2017:
It is clear from the consultation document that we are still on a journey to an unknown destination:“The reforms set out in this document could provide a springboard for going further, and the Government will continue to explore options to create a clearer and more robust developer contribution system that really delivers for prospective homeowners and communities accommodating new development.

One option could be for developer contributions [towards affordable housing as well as infrastructure] to be set nationally and made non negotiable. We recognise that we will need to engage and consult more widely on any new developer contribution system and provide appropriate transitions. This would allow developers to take account of reforms and reflect the contributions as they secure sites for development.

The proposals in this consultation are an important first step in this conversation and towards ensuring that developers are clear about their commitments, local authorities are empowered to hold them to account and communities feel confident that their needs will be met.”
First step in a conversation??Contributions via section 106 planning obligations
The document sets out perceived disadvantages of relying on section 106 planning obligations, including:
– delays (but there is no mention of how these could easily be reduced by prescriptive use of template drafts and more robust guidance and the Government’s previous proposal for an adjudication process to resolve logjams in negotiations has been dropped)
– the frequency of renegotiations, most frequently changing the type or amount of affordable housing (but with no analysis of why this is so – often in my experience for wholly necessary reasons, often linked to scheme changes or reflection of changed government affordable housing priorities or funding arrangements)

– a concern that they may “only have captured a small proportion of the increase in value” that has occurred over the time period covered by the University of Liverpool research report (but, aside from where the scale of contributions has been depressed from a policy compliant position due to lack of viability, why is this relevant? Planning obligations should be about necessary mitigation of the impacts from development, not about capture of uplifts in land value ).

– lack of transparency.

– lack of support for cross boundary planning.

Despite these criticisms, the document does not propose significant changes to the section 106 process (or provide any timescale for the further review it alludes to) save for proposing to remove the pooling restriction (Regulation 123 of the CIL Regulations 2010) in areas:

* “that have adopted CIL;

* where authorities fall under a threshold based on the tenth percentile of average new build house prices, meaning CIL cannot feasibly charged;

* or where development is planned on several strategic sites”

The Government is consulting on what approach should be taken to strategic sites for this purpose, the two options being stated as:“a) remove the pooling restriction in a limited number of authorities, and across the whole authority area, when a set percentage of homes, set out in a plan, are being delivered through a limited number of large strategic sites. For example, where a plan is reliant on ten sites or fewer to deliver 50% or more of their homes;

b) amend the restriction across England but only for large strategic sites (identified in plans) so that all planning obligations from a strategic site count as one planning obligation. It may be necessary to define large strategic sites in legislation.”
I would prefer to see the pooling restriction dropped across the board. If authorities choose not to adopt a CIL charging schedule but to rely on section 106 planning obligations to make contributions towards infrastructure then why not let them, subject to the usual Regulation 122 test? I thought we wanted a simpler system?
There are sensible proposals for summaries of section 106 agreements to be provided in standard form (although we do not yet have the template), so that information as to planning obligations can be more easily made available to the public, collated and monitored. Contributions via CIL
The Government’s thinking on CIL continues along the lines set out alongside the Autumn 2017 budget and summarised in my 24 November 2017 blog post CIL: Haven’t Found What I’m Looking For ie wandering dangerously away from the CIL review panel’s ideas of a simpler, more uniform but lower charge regime. The proposed ability for authorities to set different CIL rates based on the existing use of land is inevitably going to make an overly complex system even worse, introducing another uncertainty, namely how the existing use of the land is to be categorised. The Government recognises that risk:

“Some complex sites for development may have multiple existing uses. This could create significant additional complexity in assessing how different CIL rates should be apportioned within a site, if a charging authority has chosen to set rates based on the existing use of land.

In these circumstances, the Government proposes to simplify the charging of CIL on complex sites, by:

* encouraging the use of specific rates for large strategic sites (i.e. with a single rate set for the entire site)

* charging on the basis of the majority use where 80% of the site is in a single existing use, or where the site is particularly small; and

* other complex sites could be charged at a generic rate, set without reference to the existing use of the land, or have charges apportioned between the different existing uses.”

One wonders how this would play out in practice.

It seems that the requirement for regulation 123 lists (of the infrastructure projects or types of infrastructure which the authority intends to fund via CIL – and which therefore cannot be secured via section 106) is to be removed, which is of concern since regulation 123 lists (the use of which should be tightened rather than loosened) serve at least some degree of protection for developers from being double-charged.
The Government is proposing to address one of the most draconian aspects of the CIL process – the current absolute requirement for a commencement notice to be served ahead of commencement of development, if exemptions and the right to make phased payments (where allowed by the authority) are not to be lost, is to be replaced by a two months’ grace period. However, this does not avoid all current problems as any exemptions would still need to be secured prior to commencement.

A specific problem as to the application of abatement provisions to pre-CIL phased planning permissions is to be fixed. These flaws in the legislation continue to emerge, a function of the complexity and artificiality of the whole edifice, which the panel’s proposals would significantly have reduced. In the meantime, we are some way away from actual improvements to the system we are all grappling with day by day, with no firm timescale for the next set of amending Regulations. Viability
The thrust of the draft planning practice guidance for viability is understood and reflects what had been heralded in the September 2017 Planning for the right homes in the right places consultation document – focus viability consideration at allocation stage, standardise, make more transparent – but there are some surprising/interesting passages:
– Is the Government contemplating review mechanisms that don’t just ratchet upwards? Good if so:
“It is important that local authorities are sufficiently flexible to prevent planned development being stalled in the context of significant changes in costs and values that occur after a plan is adopted. Including policies in plans that set out when and how review mechanisms may be included in section 106 agreements will help to provide more certainty through economic cycles.

For all development where review mechanisms are appropriate they can be used to amend developer contributions to help to account for significant changes in costs and values over the lifetime of a development. Review mechanisms can be used to re- apportion or change the timing of contributions towards different items of infrastructure and affordable housing. This can help to deliver sites that would otherwise stall as a result of significant changes in costs and values of the lifetime of a development.”
– Review mechanisms are appropriate for “large or multi phased development” in contrast to the ten homes threshold in draft London Plan policy H6 (which threshold is surely too low).
– The document advises that in arriving at a benchmark land value, the EUV+ approach (ie existing use value plus premium) should be used. The London Mayor will have been pleased to see that but will then have choked on his cornflakes when the Government’s definition of EUV+ is set out. According to the Government, EUV is not only “the value of the land in its existing use” (reflecting the GLA approach) but also “the right to implement any development for which there are extant planning consents, including realistic deemed consents, but without regard to other possible uses that require planning consent, technical consent or unrealistic permitted development” (which is more like the GLA’s approach to Alternative Use Value!).
Then when it comes to assessing the premium, market comparables are introduced:
“When undertaking any viability assessment, an appropriate minimum premium to the landowner can be established by looking at data from comparable sites of the same site type that have recently been granted planning consent in accordance with relevant policies. The EUV of those comparable sites should then be established.

The price paid for those comparable sites should then be established, having regard to outliers in market transactions, the quality of land, expectations of local landowners and different site scales. This evidence of the price paid on top of existing use value should then be used to inform a judgement on an appropriate minimum premium to the landowner.”

I am struggling to interpret the document as tightening the methodologies that are currently followed, or indeed introducing any material standardisation of approach.

The EUV+ position is covered in more detail by George Venning in an excellent blog post.
– There is a gesture towards standardisation in the indication that for “the purpose of plan making an assumption of 20% of Gross Development Value (GDV) may be considered a suitable return to developers in order to establish viability of the plan policies. A lower figure of 6% of GDV may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces the risk.” However, there is no certainty: “Alternative figures may be appropriate for different development types e.g. build to rent. Plan makers may choose to apply alternative figures where there is evidence to support this according to the type, scale and risk profile of planned development.”
More fundamentally, I am sceptical that viability-testing allocations at plan-making stage is going to deliver. At that stage the work is inevitably broad-brush, based on typologies rather than site specific factors, often without the detailed input at that stage of a development team such that values and costs can be properly interrogated and without an understanding of any public sector funding that may be available. If the approach did actually deliver, significantly reducing policy requirements, so much the better, but that isn’t going to happen without viability arguments swamping the current, already swamped, local plan examination process.
Indeed, as was always going to be the case with the understandable drive towards greater transparency, the process is becoming increasingly theoretical (think retail impact assessment) and further away from developers opening their books to demonstrate what the commercial tipping point for them is in reality, given business models, funding arrangements, actual projected costs (save for land), and actual projected values. “Information used in viability assessment is not usually specific to that developer and thereby need not contain commercially sensitive data“.
The document contains more wishful thinking:
“A range of other sector led guidance on viability is widely available which practitioners may wish to refer to.”
Excellent. Such as?
Topically, this week, on 6 and 7 March, Holgate J heard Parkhurst Road Limited’s challenge to the Parkhurst Road decision letter that I referred to in my 24 June 2017 blog post Viability & Affordable Housing: Update. The challenge turns on the inspector’s conclusions on viability. Judgment is reserved.

We also should watch out for Holgate J’s hearing on 1 and 2 May of McCarthy and Stone & others v Mayor of London, the judicial review you will recall that various retirement living companies have brought of the Mayor of London’s affordable housing and viability SPG.
The great thing about about writing a planning law blog is that the well never runs dry, that’s for sure. (Nothing else is).
Simon Ricketts, 10 March 2018
Personal views, et cetera

All change on Monday, with sight of the draft revised NPPF, but this blog post focuses on a more fundamental issue: how unnecessarily hard it can be to make changes to a scheme that has planning permission without having to go back to the very beginning again.
Why do schemes change post-permission in the first place? It’s unsurprising when you consider:
– the time that it takes to obtain planning permission for a large project, during which market demand or other circumstances may have changed;
– the extent to which relatively detailed parameters need to be fixed at such an early stage even for an outline application;

– the opportunities that often arise to increase densities or make other improvements once a house-builder or end-user takes over the reins from the initial applicant (for the avoidance of doubt strategic land promoters are a good and necessary thing – often no-one else is going to fulfil that upfront, high risk/high cost, role at the outset of long-term projects beyond a certain scale).

These scheme changes are often to be welcomed and yet sometimes it seems as if the planning system conspires to prevent them. See Philip Barnes’ blog post ‘A simple way of increasing housing delivery‘ (11 January 2017) for an excellent articulation of the practical frustrations from a house-builder’s perspective.
Of course there are two mechanisms available:
– section 73 of the Town and Country Planning Act 1990 enables “applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.”
– section 96A of the 1990 Act enables a local planning authority to approve a “change to any planning permission relating to land in their area if they are satisfied that the change is not material.”

But there are limitations to both procedures, some in the legislation itself (for instance section 73 applications cannot be used to extend the life of a planning permission and section 96A applications can only be made “by or on behalf of a person with an interest in the land to which the planning permission relates“), some by way of case law and some (the most problematic, because so uncertain) by reason of the breadth of discretion that local planning authorities have in determining whether the particular changes sought fall within the ambit of either procedure – not assisted at all by vague and unnecessarily restrictive advice in the current Planning Practice Guidance.
The detailed position is set out in Town partner Clare Fielding’s 2015 paper to the Oxford Joint Planning Law Conference From concept to construction: the law and practice of amending planning permissions. It is disappointing that we are still in as uncertain a place as we were then.

The main problem is the lack of any firm rules as to the extent of changes to a planning permission which can be secured under section 73. The leading case remains Coventry City Council ex p Arrowcroft Group plc (Sullivan J, 21 July 2000), where there is the often quoted passage from Sullivan J:“It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local authority ‘… shall consider only the question of the conditions subject to which planning permission should be granted’…Thus the Council is able to impose different conditions upon a new planning permission, but only if they are conditions which the Council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”
So the guiding principle is what is a “fundamental” alteration? “Fundamental” is a big thing as far as lawyers are concerned – think from the law of contract the principles of “fundamental mistake”, “fundamental breach” and “fundamental lack of consideration – it’s not just millennial adjective-inflation along the lines of fabulous, awesome and great!
And yet successive Governments have since 2009 described the procedure as the making of “minor material amendments” (hence for those of us in the trade the inevitable acronym of “MMA” for section 73 applications – lose that please folks!). The current Planning Practice Guidance says this:
“There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.”
The roots of this are in the (now cancelled) document published first in 2009 and then updated in 2010, Greater Flexibility For Planning Permissions – a proportionate and timely response at the time to the financial crisis and its implications for house building and economic development more generally. Aside from re-introducing for a temporary period the ability to extend the duration of planning permissions, the document gave guidance on the use of the then new section 96A procedure for non-material amendments (introduced by the Planning Act 2008) and sought to “streamline and clarify” the section 73 procedure in the light of the Killian-Pretty review which had recommended that “the Government should take steps to allow a more proportionate approach to minor material changes in development proposals after permission has been granted” and some further work carried out by WYG, in which WYG had come up with that problematic wording:
“A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved”
The purpose of the guidance and the thrust of the Killian-Pretty and WYG work was not in any way to cut back on the use of section 73 but, by incorporating in guidance those references to “minor material amendment” and “not substantially different” the Government introduced confusion. “Minor material amendment” may be a handy phrase but a more accurate one, reflecting the law, would be:
“less than fundamental amendment, whether material or not“.
As a result of the confusion we have a patchwork situation where many authorities have been comfortable approving significant changes by way of section 73 (for instance Barnet Council at Brent Cross Cricklewood) but others have been running scared or seeking legal advice which is ultimately of little assistance – the authority must consider whether the changes are a “fundamental alteration of the proposal put forward in the original application”. That is a matter of planning judgment, albeit in my view “fundamental” means “fundamental”!
There has been surprisingly little case law, although two cases from last year are helpful:
– R (Vue Entertainment Limited) v City of York Council (Collins J, 18 January 2017) where the court upheld a section 73 permission relation to a mixed use development, where the changes to the permitted scheme included increasing the size of a proposed cinema from 12 screens with a capacity of 2,000 people to 13 screens with a capacity of 2,400.
– R (Wet Finishing Works Limited) v Taunton Deane Borough Council (Singh J, 20 July 2017) is also interesting – not just because a challenge to a approved change from 84 to 90 dwellings failed (how could that have been fundamental in anyone’s mind?) but because the 84 dwellings figure was included in the approved description of development and that was still not a bar on the change being approved via section 73. An area of repeated debate is whether a section 73 permission can achieve amendments to conditions which are inconsistent with the approved description of development and often a section 96A application is made to amend the description of development, replacing any reference in the description to numbers of, for instance, dwellings, with a condition to the same effect, so that that condition can then be amended by section 73. You begin to see the unnecessary bureaucracy, legalism (caused by fear of judicial review) and scope for uncertainty.
So why not simply make a fresh application for planning permission rather than seeking to proceed under section 73?
First and most importantly, inevitably there is less risk of being drawn back into a prolonged consideration of the merits of the proposal itself. This is of course another area that is not black and white. Whilst section 73(2) states that “[o]n such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted“, inevitably if policies have changed since the existing permission was approved the decision maker may seek to use the section 73 application as a means of applying them, asserting that the section 73 permission should only be granted with those additional or tightened conditions or obligations.
Secondly, rather than starting afresh with another full set of application documentation, it is likely to be acceptable simply to supplement the existing material where necessary, reducing significantly the scale of the application package for all concerned. Where the existing permission was supported by a viability appraisal that process will need to be updated (in London there is guidance on this in the affordable housing and viability SPG and policy H6 paragraphs G to J of the draft London Plan). A deed of variation to the existing section 106 agreement is more likely to be accepted, rather than requiring a fresh section 106 agreement.
Thirdly, a section 73 application may be the only way of avoiding being hit for CIL on top of existing section 106 obligations which were intended to contribute to the same infrastructure requirements, where the local planning authority has adopted a CIL charging schedule since the original planning permission was issued.
Fourthly, a flat £234 application fee rather than a fee of up to £150,000 for an application for outline planning permission. Maybe that £234 figure is too light, particularly where more than one condition will be changing from the original permission, but there is no basis on an amended scheme for paying the same fee as first time round.
Of course, care is needed by the authority in drafting the section 73 permission (see my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions).

Why are there also arguments, in the context of section 96A, as to whether amendments are “material” or not? Well, section 96A is an extremely useful procedure, in that there a 28 day determination timescale (rather than the normal application timescale that applies for section 73 applications), there are no consultation requirements and it does not result in a fresh planning permission, meaning that there is no need to vary the existing section 106 agreement. Of course, again what is material (ie material in planning terms) is for the local planning authority to determine and as long as its determination on the issue is reasoned, any potential challenger to an approval faces an uphill struggle. Conversely, the applicant has no right of appeal to the Secretary of State. The authority is in a position, of (to be cynical) much power or (to be more realistic) being unclear as to what approach it should take – which again is a reason to consider whether clearer, more positive, guidance in the PPG is required rather than this:
“There is no statutory definition of ‘non-material’. This is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another.”
In unveiling the draft revised NPPF (and potentially draft revised PPG alongside it) on Monday, will the prime minister take the opportunity to clarify for us that “non-material” means “non-material” and that “fundamental” does indeed mean “fundamental”? Probably not, she will focus on grander matters I’m sure, but the section 96A and section 73 procedures are two of the dull, forgotten but necessary, nuts and bolts of the process that have the most tendency to jam. Jam today, no homes tomorrow.
Simon Ricketts, 3 March 2018
Personal views, et cetera